Vermont Yankee Nuclear Power Corp. v. Entergy Nuclear Vermont Yankee, LLC
683 F.3d 1330
| Fed. Cir. | 2012Background
- DOE failed to accept spent nuclear fuel as required by NWPA; Vermont Yankee and ENVY entered a PSA selling VYNPS and transferring the Standard Contract rights, but with an ongoing dispute over the one-time fee; ENVY acquired pre-existing claims against the government under the Standard Contract via assignment from Vermont Yankee; the PSA transfer included claims related to pre-closing mitigation and diminution in value, but excluded the one-time fee; ENVY sought damages including state-approval costs, pre-disposal costs, and other mitigation-related expenses; the Claims Court awarded some damages, and the court of appeals addressed assignment validity, scope, and several state-regulation-related costs
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NWPA allows a partial assignment of the Standard Contract | ENVY asserts partial assignment valid | Government argues partial assignment violated 41 U.S.C. § 15(a) | Partial assignment valid |
| Whether Vermont Yankee transferred pre-closure mitigation costs and diminution in value | ENVY retained these claims under PSA | Yankee intended only non-one-time-fee-related claims to transfer | ENVY validly transferred those claims |
| Foreseeability of Vermont state-imposed costs as damages | Foreseeable as part of mitigation; reasonable foreseeability supports recovery | Some costs (Clean Energy Fund, flood analysis, visual barrier) were unforeseeable or preempted | Legal and lobbying fees recoverable; other state-imposed costs not recoverable due to foreseeability/preemption challenges |
| Causation and measurement for disposal of contaminated material and SNF characterization | Costs would have been avoided or different absent breach | Costs not proven to differ from non-breach world | Disposal costs not recoverable; SNF characterization costs not recoverable |
| Costs of capital and payroll loader overheads | Overhead costs should be recoverable consistent with precedent | No-interest rule and related limitations apply; some overhead not recoverable | Cost of capital denied; overhead via capital suspense loader recoverable; Resource Code 19 payroll loader denied |
Key Cases Cited
- Dominion Resources, Inc. v. United States, 641 F.3d 1359 (Fed.Cir.2011) (permits assignment of rights under NWPA Standard Contract)
- Tuftco Corp. v. United States, 614 F.2d 740 (Ct.Cl.1980) (Contracts Act waivers may be recognized by government conduct)
- Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604 (U.S. 2000) (waiver can occur by acceptance of performance post-breach)
- Old Stone Corp. v. United States, 450 F.3d 1360 (Fed.Cir.2006) (foreseeability limits restitution for mitigation losses)
- Anchor Savings Bank, FSB v. United States, 597 F.3d 1356 (Fed.Cir.2010) (foreseeability and type of damages govern recovery)
- Indiana Michigan Power Co. v. United States, 422 F.3d 1369 (Fed.Cir.2005) (high-cost/ speculative mitigation investments may be unforeseeable)
- Pac. Gas & Elec. Co. v. United States, 461 U.S. 190 (U.S. 1983) (nuclear-safety related preemption considerations)
- Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (U.S. 1984) (preemption considerations in nuclear regulation)
- N. States Power Co. v. United States, 224 F.3d 1361 (Fed.Cir.2000) (pre-breach foreseeability and mitigation)